L&E issues to know: Breastfeeding in the workplace

When an employee returns to work after giving birth, the employer must be mindful of the employee’s rights to breastfeed or express breast milk in the workplace. In 2010, the Patient Protection and Affordable Care Act, sometimes known as “Obamacare,” amended Section 7 of the Fair Labor Standards Act (FLSA) to require covered employers to provide non-exempt, nursing mother employees “reasonable” break times to express breast milk. Employers must also provide a place of privacy for these breaks. The amendments to the FLSA permit nursing mothers to take breaks during each work day, each time they are needed, for one year after a child’s birth. Employers must also set aside an area that that is “shielded from view and free from intrusion from coworkers and the public.” This space can be any vacant area as long as it has a locking door, otherwise meets the provision’s privacy requirements, and is not a bathroom stall (which the law specifically prohibits as an option).

Significantly, non-exempt employees do not have to be paid for any time spent taking these breaks, but employers should be conscious of a couple potential pitfalls.

First, the applicable regulations clarify that if paid breaks are already given, and an employee uses that time to express breast milk, the employee must be compensated as she otherwise would for the paid break. Thus, employers may wish to develop a time-keeping system that entitles a nursing employee to be paid while expressing milk only for the length of or during paid breaks. For example, if an employee ordinarily receives a 15 minute paid break and she uses that time to express milk, but takes a total of 25 minutes to do so, the employee is not entitled to be paid for the additional 10 minutes of break time.

Second, employers must also consider the FLSA’s general requirement regarding break time, which also applies here: Non-exempt employees must be completely relieved from their duties during their break or they must be compensated. Practically speaking, this means that employees should not be “working” while they are expressing milk; indeed, even checking email on a smart phone or reviewing a document could trigger an employer’s obligation to compensate the non-exempt employee for this time “worked” during her nursing break.

One challenge facing employers in the wake of these new rules is determining what constitutes a “reasonable” break. To provide some insight, the Department of Labor (DOL) expounded on the “reasonable” break component of the law, directing employers to consider both the frequency and number of breaks a nursing employee might need and the length of time needed to actually express milk.

In general, although the number of nursing breaks varies among women, the DOL posits that a nursing employee will likely need two or three nursing breaks during an eight hour shift. As for the length of each break, although this also varies among women, the DOL has surmised that the act of expressing milk alone (not including time to get to the designated area and get situated) generally takes 15 to 20 minutes.

The DOL further instructs that it will consider the following factors in determining whether an employer’s provided break to a nursing employee was “reasonable”:

The time it takes to get to and from the nursing space and the wait, if any, to use the space

Whether the employee needs to retrieve her breast pump and other supplies from another location

Whether the employee will need to unpack and set up her own pump or if a pump is provided for her

The efficiency of the pump used to express milk (employees using different types of pumps may require more or less time)

Whether there is a sink and running water nearby for the employee to use to wash her hands before pumping and to clean the pump attachments when she is done expressing milk, or what additional steps she will need to take to maintain the cleanliness of the pump attachments

The time it takes for the employee to store her milk either in a refrigerator or personal cooler

Under these circumstances, employers would be prudent to discuss these factors with employees in an effort to estimate the length of a “reasonable” break. Also bear in mind that employers may be subject to similar, but more protective, state laws. To date, 24 states, the District of Columbia and Puerto Rico have enacted workplace breastfeeding laws, some of which are more expansive than the FLSA.

In Colorado, for example, employers are required to provide a reasonable break time for an employee to express breast milk for up to two years after the child's birth. Maine and Vermont further extend the relevant time period to three years following childbirth. Montana even requires employers to provide facilities for storage of the expressed milk.

Thus, the accommodation of an employee’s pregnancy now extends far beyond maternity leave. To ensure compliance with the new FLSA requirements, employers should begin choosing or developing a compliant nursing area, checking applicable state laws for any further requirements, drafting employee policies to outline the nursing break procedures and developing a time-keeping system to track time spent taking nursing breaks. Employers who prepare a game plan now will be better served when an employee returns to work after giving birth and will be less likely to run afoul of the law’s requirements for nursing mothers.

Contributing Author

Chad W. Moeller

Chad W. Moeller is a partner at Neal, Gerber & Eisenberg. He represents corporations and not-for-profit organizations of all sizes in employment matters in federal...

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